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SR 04-12-2016 8A City Council Report City Council Meeting: April 12, 2016 Agenda Item: 8.A To: Mayor and City Council From: David Martin, Director, Planning and Community Development, Planning and Community Development Subject: Review of City Noise Ordinance and Related Enforcement Policies and Practices Recommended Action Staff recommends that the City Council: 1. Make no changes to the existing noise ordinance, since existing law would likely withstand a constitutional challenge and provides enforcement staff with the tools necessary to enforce noise related violations; 2. Direct staff to compile Administrative Instructions which would provide further guidance for law enforcement officers in the field. Executive Summary At its December 15, 2015 meeting, Council directed staff to review how the recently amended noise ordinance is being enforced in commercial areas and to consider how it might be further refined to avoid having it interfere with activities protected by the First Amendment. Broadly, staff believes that the existing ordinance is sufficient to enforce noise, considering constitutional constraints. Eliminating noise enforcement in respond to complaints. Therefore, staff recommends that Council direct staff to compile Administrative Instructions to provide greater guidance to law enforcement officers in the field. Background At its December 15, 2015 meeting, Council directed staff to review how the recently amended noise ordinance is being enforced in commercial areas and to consider how it might be further refined to avoid having it interfere with activities protected by the First Amendment, particularly demonstrations/protests. At its February 24, 2015 meeting (Attachment A), Council adopted an ordinance amending Chapter 4.12 of the Santa Monica Municipal Code (SMMC) to add general 1 of 6 prohibitions against noise that is unreasonably disruptive to persons of normal sensitivity and to clarify that the general prohibition, but not the specific decibel limits, would apply to activities in or on public streets, parks, and other public property. Prior to these modifications, the noise ordinance only contained decibel limitations which were applied to three different Noise Zones, including public streets and sidewalks. Although the amendments retained the decibel levels that had previously existed, the code amendments altered the exemptions so that the decibel limits would not apply to activities on public property, including streets and parks. This was intended to eliminate the issue of whether the decibel limits unlawfully interfere with the exercise of First Amendment rights in public forums. Instead, local law now only regulates noise in public spaces by the general prohibition rb the peace, prolonged or unnatural or unusual in \[its\] use, time or place as to cause physical s have been adopted in other cities and upheld by the courts. Of course, in addition to local law, state law, such as California Penal Code Section 415, also regulates noise on public (and private) properties. The local law changes discussed above also incorporated guidance from the courts cautioning against conferring too much unguided discretion on law enforcement personnel, by providing objective criteria for enforcement considerations, such as: the volume, intensity and duration of the noise, the distance from which the noise can be heard, and time of day or night the noise occurs. The changes also provided for a new prohibition on any person from interfering with or resisting efforts by law enforcement llows for the handling of violations of the noise ordinance by either infraction or misdemeanor, in addition to an administrative citation by non-sworn officers such as Code Enforcement personnel. 2 of 6 At its February 24, 2004 meeting (Attachment B) Council updated and substantially revised the noise ordinance, with a particular focus on residential neighborhoods and affording greater protections to residents living in proximity to industrial and commercial uses. Discussion Political speech in traditional public forums, such as streets and parks, is afforded a very high level of First Amendment protection, and blanket prohibitions of such speech are generally unconstitutional. However, the First Amendment to the United States Constitution allows reasonable regulations on sound amplification and other loud noise, such as: Reasonable time, place, and manner restrictions on such speech are permissible if they are content-neutral, narrowly tailored to serve substantial government interests, and leave ample alternative ways for the speech to occur. Speech or expressive conduct can be restricted because of its relationship to unlawful conduct, such as disorderly conduct or trespass. The First Amendment, in some instances, permits the government to impose a permit requirement for those wishing to engage in expressive activities that are content-neutral on public property, such as streets, sidewalks, and parks. Any such permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. The City currently imposes such a permit on street performers in very limited areas of the City, where congestion is most larger events. However, small free speech gatherings, such as demonstrations or protests involving less than 75 persons, are generally not subject to local permitting requirements. Courts have also upheld governmental regulations and actions that limit unreasonable 3 of 6 noise based on the government's broad powers to protect citizens from extremely disruptive conduct. Additionally courts are particularly likely to uphold governmental actions which protect individuals against extremely disruptive and unwelcomed noise and are unable to easily escape from such noise (e.g., extremely loud demonstrations in residential areas late in the evening). However, governmental free-speech regulations of traditional public forums, such as streets, sidewalks or parks, must generally be content and speaker neutral. In other words, the government may not single out particular subjects or speakers for favored or disfavored treatment. The Supreme Court has interpreted the first amendment as creating a "...profound national commitment to the principle that debate on public issues 1 should be uninhibited, robust and wide-open..." Police Department and the Code Enforcement Division; however, sworn police officers take the lead on incidents that involve larger public safety concerns, such as protests/demonstrations. Based on n the enforcement of noise related to protests. Police officers face difficult constitutional and operational issues when tasked with the dual responsibility of maintaining public order and protecting the First Amendment rights of protestors and marchers. The Santa Monica Police Department is charged with safeguarding the public during a demonstration which extends to individuals who are exercising their right to free speech under the First Amendment of the United States Constitution. Eliminating noise enforcement in commercial districts would severely protests occur in commercial districts. The Police Department responded to 44 calls for service in 2015 regarding disturbances involving a protest. All of the calls for service have occurred in areas deemed 1 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 4 of 6 commercial. These include hospitals, business districts, hotel properties and places of worship. In all but two of these calls, no law enforcement action was taken. As long as the demonstrator(s) observe reasonable time, place and manner restrictions Santa Monica police personnel will not intervene unless there is a clear and present danger of civil unrest, immediate threat to public safety, unreasonable disturbance or the Due to the considerable challenges in balancing the rights of both the protesters and other members of the public, it is crucial for police officers to be able to assess the specific circumstances of each protest and make decisions accordingly. The Police with protest group organizers, contacting them prior to the event to ensure the group is able to safely exercise its right to protest without imposing on the safety or rights of others. This proactive communication practice has resulted in the successful completion of several highly volatile protest topics where public safety and the safety of the protestors was a primary concern. In a recent incident where protesters were detained temporarily, the circumstances resulting in the temporary detention of protesters was triggered by the physical conduct of the protesters, not just the noise that was being generated (no individual was formally booked or jailed). Santa Monica Police Department and Code Enforcement staff will be available at the City Council meeting to discuss enforcement. Staff recommends making no changes to the existing noise ordinance, since existing law would likely withstand a constitutional challenge and provides enforcement staff with Community Noise Officer to adopt regulations to guide the enforcement and implementation of the Noise Ordinance. Staff recommends that Council direct staff to compile such regulations which would provide further guidance for law enforcement officers in the field. 5 of 6 Alternatives Council could direct staff to modify the noise ordinance to Commercial districts within the City are often mixed with residential units. Additionally, commercial districts often contain many noise sensitive uses, such as day care centers, elderly care facilities, hotels and hospitals. Financial Impacts and Budget Actions There is no immediate financial impact or budget action necessary as a result of recommended action. Prepared By: Salvador Valles, Assistant Director of PCD Approved Forwarded to Council Attachments: A. February 24, 2015 Council Action B. February 24, 2004 Council Action C. Written comments 6 of 6 Add to 8-A 04/12/2016 Anne Samartha From:Stephanie Venegas Sent:Tuesday, April 12, 2016 9:05 AM To:councilmtgitems Subject:FW: Noise Ordinance Attachments:NoiseOrdinanceLetter.pdf Addtofor4/12mtg CƩƚƒʹSantaMonicaCityManager'sOffice {ĻƓƷʹTuesday,April12,20169:04AM ƚʹStephanieVenegas<Stephanie.Venegas@SMGOV.NET> {ǒĬƆĻĭƷʹFW:NoiseOrdinance CƩƚƒʹBrianDolber\[mailto:bdolber@unitehere11.org\] {ĻƓƷʹMonday,April11,20166:08PM ƚʹTonyVazquez<Tony.Vazquez@SMGOV.NET> /ĭʹKevinMcKeownFwd<kevin@mckeown.net>;GleamDavis<Gleam.Davis@SMGOV.NET>;SueHimmelrich <Sue.Himmelrich@SMGOV.NET>;PamOConnor<Pam.OConnor@SMGOV.NET>;Terryh͸5ğǤ<Terry.Oday@smgov.net>; TedWinterer<Ted.Winterer@SMGOV.NET>;SantaMonicaCityManager'sOffice<manager.mailbox@SMGOV.NET>; MarshaMoutrie<Marsha.Moutrie@SMGOV.NET> {ǒĬƆĻĭƷʹNoiseOrdinance Hi Tony, I've attached a letter on behalf of the local regarding explaining our position on the noise ordinance. Best, -- Brian Dolber, Ph.D. Unite Here Local 11 Research Analyst 1 Add to 8-A 04/12/2016 464 Lucas Ave., Suite 201 Los Angeles, California 90017 (213) 481-8530 FAX (213) 481-0352 April 11, 2016 Dear Mayor Vazquez: We are deeply concerned about the staff’s recommended action regarding agenda item 8.A for the April 12, 2016 meeting. Staff recommends that City Council “Make no changes to the existing noise ordinance, since existing law would likely withstand a constitutional challenge and provides enforcement staff with the tools necessary to enforce noise related violations.” However, the language of the ordinance currently in place leaves room for police to interfere with Constitutionally-protected free speech at their discretion. This approach not only inhibits the free speech and protest activity of our activists, but also inhibits the rights of Santa Monicans to hear diverse points of view. As such, we recommend that the City Council insert as new subd. (5) in Section 4.12.030 (b) of the Santa Monica Municipal Code: “(5) Any non-commercial, constitutionally- protected speech conducted in an area in which commercial activity is an allowable use.” This language is, in fact, more restrictive than the alternative proposed in the staff report. While the staff suggest an exemption from all local noise regulation in “predominantly commercial” districts, our proposal exempts only non-commercial speech. If problems arise as a result of this policy, it can of course be modified in the future. However, we believe strongly that Santa Monica should err on the side of free expression, rather than excessive restriction. Santa Monica prides itself on being a progressive, open community. We must live up to this reputation and defend the rights of our residents and workers to free speech. Living in a free society means encouraging robust debate, even when members of our community might find it offensive. This is particularly important in commercial districts, where disputes often arise due to labor issues. We strongly encourage the City Council to amend the noise ordinance to exempt non- commercial, constitutionally protected speech in commercial zones. Sincerely, Brian Dolber Research Analyst Unite HERE Local 11 CC: Rick Cole Marsha Mautrie Kevin McKeown Gleam Davis Sue Himmelrich Pam O’Connor Terry O’Day Ted Winterer Add to 8-A 04/12/2016 Anne Samartha From:Council Mailbox Sent:Tuesday, April 12, 2016 5:14 PM To:Tony Vazquez; Ted Winterer; Pam OConnor; Sue Himmelrich; Gleam Davis; Terry OÔDay; Kevin McKeown Fwd Cc:councilmtgitems; Elaine Polachek; David Martin Subject:FW: Noise Ordinance Attachments:Letter to Council.pdf Follow up Follow Up Flag: Flag Status:Flagged Council Pleaseseetheattachedemailre:noiseordinance. Clerk AddtoforƷƚƓźŭŷƷ͸ƭmeeting. Thanks, Stephanie CƩƚƒʹRabbiNeilComessDaniels\[mailto:rabbi@bethshirshalom.org\] {ĻƓƷʹTuesday,April12,20164:47PM ƚʹCouncilMailbox<Council.Mailbox@SMGOV.NET> {ǒĬƆĻĭƷʹNoiseOrdinance Please see the attached letter regarding tonight's discussion of the City's Noise Ordinance. Thank you, Neil Rabbi Neil Comess-Daniels Beth Shir Shalom 1827 California Avenue Santa Monica, CA 90403 (310) 453-3361 www.bethshirshalom.org 1 Add to 8-A 04/12/2016 April 12, 2016 To the Santa Monica City Council, I am sorry that my schedule precludes my being able to say this to you in person this evening. As a founding member of Clergy and Laity United for Economic Justice, I want to share my thoughts with you about the issuesof the First Amendment and Free Speechthat haveimportant ramifications regarding your discussion of the current and future form of the City’s noise ordinance. Iencourage the Council to exempt non-commercial speech in commercial zones from the ordinance. Representing the “Clergy”part of CLUE’s name, I would emphasize to you that many religious traditions have faced persecution and have suffered when their right to speak out against oppression was limited. In Jewish law, when we know about someone or actually witness someone involvedin immoral, unjust or illegal behavior we are to say mandated something, , “You shall surely reprove your neighbor so chocheiach tichoach that \[your neighbor’s wrongs\] do not continue through you\[r silence\].”Levticus 19:17. In the United States we frame this issue in terms of Free Speech and the first amendment. In biblical law, when it comes to the protection of the right to point out a wrong or injustice, speech is not only free, it is mandated. The formation of the noise ordinance must not restrict the right nor ability of anyoneto call out injustice. Thank you, •••• Rabbi Neil Comess-Daniels